Nanoremediation of soil contaminated with Arsenic and Mercury

Researchers in Spain recently published a paper describing the utilization of nanoremediation technology to clean-up soil at the Brownfield site heavily contaminated with arsenic and mercury.

The research draws on a several lab-scale experiments that have shown the use of nanoscale zero-valent iron (nZVI) to be effective in reducing metal(loid) availability in polluted soils.


The core-shell model of zero-valent iron nanoparticles. The core consists of mainly zero-valent iron and provides the reducing power for reactions with environmental contaminants. The shell is largely iron oxides/hydroxides formed from the oxidation of zero-valent iron. The shell provides sites for chemical complex formation (e.g., chemosorption).

The researchers evaluated the capacity of nZVI for reducing the availability of As and Hg in brownfield soils at a pilot scale, and monitored the stability of the immobilization of these contaminants over a 32 month period. The researchers contend that their study is the first to apply nZVI to metal(loid)-polluted soils under field conditions.

In the study, two sub-areas (A and B) that differed in pollution load were selected, and a 5 m2 plot was treated with 2.5% nZVI (by weight) in each case (Nanofer 25S, NanoIron). In sub-area A, which had a greater degree of pollution, a second application was performed eight months after the first application.

Overall, the treatment significantly reduced the availability of both arsenic and (As) and mercury ((Hg), after only 72 h, although the effectiveness of the treatment was highly dependent on the degree of initial contamination.

Sub-area B (with a lower level of pollution) showed the best and most stable immobilization results, with As and Hg in toxicity characteristics leaching procedure (TCLP) extracts decreasing by 70% and 80%, respectively. In comparison, the concentrations of As and Hg in sub-area A decreased by 65% and 50%, respectively.

Based on the findings, the researchers contend that the use of nZVI at a dose of 2.5% appears to be an effective approach for the remediation of soils at this brownfield site, especially in sub-area B.

Environmental Realty of Mercury Contamination in Grassy Narrows

Written by Abimbolo Badejo, Staff Reporter

Grassy Narrows, a First Nation community of 1,600 residents, landed on the world radar due to a tragic mercury poisoning accident, made possible by lax laws regarding environmental pollution in the 1960s. Affected policies have been amended to prevent further occurrences but solutions to the poisoning effects are yet to be addressed effectively.

Government officials discovered Mercury contamination in the English-Wabigoon River in the 1970s, caused by a chemical plant at the Reed Paper Mill in Dryden Ontario. The river flows beside two First Nations communities (Grassy Narrows and Whitedog), which depend on this river as their source of livelihood. The contaminated river poisoned the fish, and this caused a shutdown of the associated fishing industry, resulting in mass unemployment for the residents. In addition, various health defects ranging from neurological disorders  to digestive disorders have been observed among the residents (spanning three generations) with no encouraging end to the defects in sight.

Studies and Plans

Since the discovery of mercury contamination in the river in the 1970s, no major action has been taken besides the establishment of a Disability Board  in 1986, which was saddled with the duty of compensating affected residents; many of whose claims for compensation were denied. After decades of delay, pressures from concerned groups (First Nations and environmental Groups) finally elicited a somewhat response from the Ontario provincial government and the Federal government. The government of Ontario stated in June 2017 that it has secured  $85 million to  clean up the contaminated water and land, while the Federal Government has agreed to put a trust fund in place to ensure the establishment of a treatment center focused on ailments related to the mercury poisoning. The treatment facility is expected to cost about 88.7 million dollars, as estimated after a feasibility study. 1,2

Dryden Paper Mill

Mercury in the Environment

Mercury exists in nature in either the elemental, inorganic or organic forms. The organic form of mercury (Methyl mercury) is of greatest concern in the health industry.  Elemental mercury is transformed into the organic form in the aquatic environment by microbial activity, which is in turn bioaccumulated in the flesh of aquatic organisms  along the aquatic food chain. Biomagnified toxic methyl mercury in the aquatic apex predators is transferred to consumers via efficient absorption from the digestive tracts into the blood stream and eventually through  the blood-brain barrier. Excess concentrations of methyl mercury in the human body, with concentrations above 0.47 µg/day (per kg in adult body weight) and  0.2 µg/day (per kg in a child’s or pregnant mother’s body weight), results in deleterious neurologic effects in humans of any age. Additional health defects such as impaired vision, blindness and digestive disorders have been reported.3,4

Similar tragic occurrences of environmental mercuric contamination have been reported in some parts of the world. Between 1932 and 1968, a chemical plant in Minamata, Japan released mercury into a lake which resulted in the death of over 100 people. This occurrence was highly significant, coining the name “Minamata Disease” for syndromes associated with mercury poisoning, such as brain damage, paralysis, incoherent speech and delirium. Another memorable tragedy was reported in Iraq in the early 1970s, where methylmercury compounds were use in seed treatment in agriculture. Wheat grains that were treated with this toxic compound were planted, harvested and made into flour for human consumption. Bread made from the poisoned flour resulted in high mortality rate among the consumers. Occupational exposure is not left out of the list as reported in Ghana in the 1960s. Elemental mercury is used in artisanal gold mining,  where gold ores from near-surface deposits were mixed with the elemental mercury before heating to release the toxic mercury vapour into the environment, leaving the gold behind. Breathing in the mercuric vapour can lead to severe pneumonitis in humans. 5

Clean-up of Mercury Contamination

Clean-up of mercury contaminated sites, such as Carson River Mercury site and Sulphur Bank Mercury Mine in Clearlake California, have been reported by the United States Environmental Protection Agency (US EPA) . The technology used include ex-situ and in-situ treatment methods. The most common method reported is the excavation and disposal of mercury contaminated soil or sediment, as hazardous waste meant for landfill or treated at an approved thermal treatment facility.  The excavated land is backfilled with clean soil and ecologically restored. An in-situ treatment method can be the stabilization / solidification of the toxic substance by sealing in the contaminant with a mixture of cement and Sulphur containing compounds. This method is made possible using an auger-system to mix the soil and cement to immobilize the contaminant. Contaminated sediments can be sealed by a method called “capping”, where a layer of sand and gravel  is poured over the sediments to prevent contact further with the contaminant. These methods and technologies have been used effectively at various mercury contaminated sites in the United States. More information can be found here: https://www.epa.gov/mercury/what-epa-doing-reduce-mercury-pollution-and-exposures-mercury

Ideally, post remediation monitoring  should include restriction of the sealed-off area to public access, absolute cessation in the consumption of food sourced from the contaminated areas and an active reduction in all processes that release mercury into the environment. In situations where the mercury is an unavoidable  component of an industrial waste such as dental amalgam production wastes or battery chemical wastes, a preventive-control suggestion will be to discharge the liquid waste into a holding reservoir to allow mercury-settling into sludge, which can be collected and treated or appropriately disposed.

Since there is an immense need for more research in sustainable and environmental-friendly extensive mercury spill clean-up, more attention should be focused on proactively preventing further occurrences  by adhering strictly to the controls that have been put in place to manage all operations pertaining to the use of mercury.

References

  1. https://www.cbc.ca/news2/interactives/children-of-the-poisoned-river-mercury-poisoning-grassy-narrows-first-nation/
  2. https://globalnews.ca/news/5189817/grassy-narrows-liberals-mercury-treatment-facility/
  3. Pirkle, C.M., Muckle, G., Lemire, M. (2016) Managing Mercury Exposure in Northern Canadian Communities. CMAJ, 188 (14) 1015-1023
  4. Bernhoft R. A. (2011) Mercury toxicity and treatment: a review of the literature. Journal of environmental and public health, 2012, 460508. doi:10.1155/2012/460508
  5. Bonzongo JC.J., Donkor A.K., Nartey V.K., Lacerda L.D. (2004) Mercury Pollution in Ghana: A Case Study of Environmental Impacts of Artisanal Gold Mining in Sub-Saharan Africa. In: Drude de Lacerda L., Santelli R.E., Duursma E.K., Abrão J.J. (eds) Environmental Geochemistry in Tropical and Subtropical Environments. Environmental Science. Springer, Berlin, Heidelberg

Demystifying Occupational Hygiene

Written by Abimbola Badejo, Staff Writer

At the recent Partners in Prevention 2019 Health and Safety Conference, Ontario, Canada; organized by Workplace Safety and Prevention Services (WSPS) Ontario, Canada, Dave Gardner of Pinchin Ltd. delivered a presentation on Demystifying Occupational Hygiene. Mr. Gardner is Senior Occupational Hygiene and Safety Consultant with Pinchin Ltd. Below is a summary of his presentation.

WHAT IS OCCUPATIONAL HYGIENE?

Occupational hygiene has been defined by the United States Department of Labour Occupational Safety and Health Administration as “that science and art devoted to the anticipation, recognition, evaluation, and control of those environmental factors or stresses arising in or from the workplace, which may cause sickness, impaired health and well-being, or significant discomfort among workers or among the citizens of the community.1.   Simply put, the goal of Occupational hygiene is to ensure the safety and protection of a worker at his or her workplace, provided the worker follows a set of guidelines  that have been put in place to safeguard his/her health and safety.  

Typical occupational hygiene principles include written standards, procedures and practices; workers training as part of a knowledge management program; logical thinking on the part of the creator; a combination of actions with words learned from the written standards; and total compliance with associated regulations.

WHY IS OCCUPATIONAL HYGIENE PROGRAM IMPORTANT?

An Occupational Hygiene program is of great importance as its negligence leads to occupational injuries and diseases. Occupational diseases are considered more significant due to factors associated with it; which include

  • Diseases caused by exposure to either chemical, physical or biological agents at the workplace
  • Sources such as exposure to airborne asbestos particles, confined spaces, noise, construction projects, etc.
  • Categories namely Long Latency Illness, Noise Induced Hearing Loss (NIHL), Chronic Exposure and effects and Acute Exposure and effects
  • Observable effects which are not seen until after a long duration of exposure
  •  75% of fatalities in diseases, attributed to occupational origins

The Ontario Workplace Safety and Insurance Board (WSIB) reported that approximately 130 thousand claims were filed, and about $940 million benefit costs were released, between 2008 and 2017. Occupational diseases with long latency are mostly serious and these account for only three percent of the occupational diseases with benefits.

Based on these factors (and those not mentioned), reviews have been made by the Human Resources and Skills Development Canada (HRSDC) and Labour Canada. These reviews include updates made to the Occupational Exposure Limits (OEL) of chemicals, training workers on the safe usage of materials and the equipment at the workplace, thorough knowledge of the materials and substances used at the workplace, compulsory and proper use of Personal Protective Equipment (PPE), alertness of workers to the state of their own health and compulsory medical check-ups in relation to workplace risk assessment.

CASE FOCUS: SUMMARY OF RISKS AND SURVEYS REPORTED FOR WORKERS IN THE CONSTRUCTION INDUSTRY

A survey made by the Center for Construction Research and Training regarding occupational diseases in the construction industry reported that the workers in this industry are:

  • twice as likely to have chronic obstructive lung diseases, five times more likely to have lung cancer, thirty-three times more likely to have asbestosis
  • inclined to suffer a 50% increase in Lung Cancer related deaths
  • predisposed to noise induced hearing loss (NIHL) (50% of workers)
  • susceptible to elevated levels of lead in their blood (17% of workers)
  • exposed to the allowable 8-hour exposure limit for Manganese during welding processes. This was observed with workers involved in boiler making (75%), iron-working (15%) and pipe-fitting (7%)).

In addition, a nationwide report has disclosed that 40% of WSIB costs are for construction occupational diseases, more construction workers die from a combination of occupational diseases and traumatic injuries and that 2 to 6 construction workers are more likely to develop occupational lung disease and NIHL.

As observed, most of the occupationally related diseases can be prevented by simple tasks such as hand-washing, proper use of PPE and correct compliance to defined regulations.

LEGISLATIONS GOVERNING OCCUPATIONAL HYGIENE

To ensure the protection of workers in various Canadian industries, regulations and guidelines have been put in place; some of which require compliance by either the employee or the employer. The legislations and related codes/standards guiding occupational hygiene in workplaces include:

Some of the provided regulations and guidelines are specific while others are general in application. The key to correct interpretation is to apply the correct regulation to the right workplace situation.

An example of a proper legislation application: Silica is an inert substance and an irreplaceable material in most products and buildings in the world today.  As the second most abundant mineral on the planet, silica is used in numerous ways. Getting the substance to the usable state requires processing, which exposes the worker to the respirable crystalline form. The regulation (O. Reg 490/09), listing silica as a designated substance, does not apply to the silica infused products but to the respirable fractions which the processing worker is exposed to. The regulation specifies an occupational exposure limit (OEL) for respirable crystalline silica as 0.05 mg/m3 of air (cristobalite silica) and 0.1 mg/m3 of air (quartz and tripoli silica) for an 8-hour/day or 40-hour weekly exposure. This regulation, however, does not apply to the employer or some other workers on a construction  project; but the employer’s responsibility will be to protect the worker’s health in compliance to section 25 (2)(h) of the OHSA, requiring employers to take every reasonable precaution in the circumstances to protect a worker.

FUNDAMENTALS OF OCCUPATIONAL HYGIENE

Before initiating an occupational hygiene program, a clearer understanding of basic terms is ideal.

Industrial Hygiene: this is an exercise devoted to the anticipation, recognition, evaluation, and control of those environmental stresses arising from the workplace, which may cause the impairment of a worker’s health.

Toxicology: the study of how chemical, physical and biological agents adversely affect biological systems. The adverse effects include irritation, sensitization, organ failure, diseases or cancer.

Disease, dose and exposure: Disease / response is caused by an agent dosage. Dosage is measured in relation to the exposure of the worker to an agent. Mathematically, exposure is calculated as the agent concentration multiplied by duration of exposure (concentration x time). Therefore, sampling surveys are simply estimating the exposure of the worker to a specific concentration of the agent. Exposure routes may be through inhalation, ingestion, contact or skin absorption.

Threshold Limit Values (TLV): TLVs are general concentration limit values for specific chemicals, to which a healthy adult worker can be exposed.  However, TLVs does not adequately protect all workers as their susceptibility levels to various chemicals are unique to them. TLVs are used by regulators as guidelines or recommendations to assist in the control of potential workplace hazards.

Time-Weighted Average (TLV-TWA): TWA concentration for a conventional 8-hour/day or 40-hour/week , to which a worker may be repeatedly exposed.

Short-Term Exposure Limit (TLV-STEL): This is a 15-minute TWA exposure that should not be exceeded.

Ceiling (TLV-C): This is a concentration that must not be exceeded during any part of working exposure

Air Monitoring: This is a process of sampling the air in the workplace, on a regular basis. The monitoring  may be qualitative (risk assessments, hygiene walkthroughs and training) or quantitative (air, noise and wipe sampling) in perspective.

RISK ASSESSMENT

The first focus of an occupational hygiene program is to conduct a risk assessment of the workplace processes.  A risk assessment shows that 20% of the activities or tasks  carried out, leads to 80% of  risks. Carrying out a risk assessment, focuses on the adverse effects of  a hazardous agent and the associated level of risk if a worker is exposed to it. Approaches to risk assessment include Critical Tasks Analysis (where stepwise task and risk inventories are made with the focus on worker’s safety), Process Safety (where the focus is on the process, controlling the risk to keep the worker safe) or a combination of both approaches. Risk assessment, therefore, is done  as thus:

  1. Making a list of the agents the worker is exposed to,
  2. Identifying the routes of entry,
  3. Identifying a relative risk level (low, medium or high),
  4. Documenting the control in place and its effectiveness.

Table 1. Requirements of a Hazard Reviewer. Scores are used to dictate the skill level required to assess and develop control strategies.

Risk
Score
Risk
Level
Minimum Requirements
<10 Low to Medium low Any trained employee
>10 to <20 Medium Health and Safety Department or a contracted Health and Safety Consultant
20 & above High Certified Health and Safety Professional or Industrial Hygienist (CRSP, CSP, CIH, ROH)

DEVELOPING AIR SAMPLING STRATEGIES

A preliminary survey is initially conducted using simple and common tools such as human senses (sight, taste, hear, smell, taste and gut-feelings), video camera, photo camera, tape measure and a notebook. Optional tools include velometer and smoke tubes.

Next, all knowledge and processes related to the hazardous agents are sought out using the central dogma of risk assessment (Recognition, Evaluation and Control).

The sampling itself should be done using standardized and validated methods (NIOSH, EPA, ASTM, etc.).

The extent of sampling should be determined, whether personal (breathing zone) samples or area samples.

Next, the duration of sampling should be determined, which could be  a whole day, full-shift, partial shift, single samples, sequential samples, grab or composite samples.

The worker to be sampled should be with the worker with the  highest exposure potential or a group of workers with similar exposure due to the similarity of their tasks at the workplace.

The amount of samples taken should also be determined.

The time of sampling should be determined (day or night shift, winter or summer season, etc.)

Documentation should be made at every sampling point; and this should include start and stop times, environmental conditions, chronological log of work tasks, quantified conditions during production, duration of shifts and break periods, use of PPE, engineering controls, housekeeping habits and the state of workplace ventilation.

PROGRAM DEVELOPMENT

Occupational hygiene programs are made with several guidelines governing it. According to the province of Ontario, all control programs must provide engineering controls, work practices and hygiene facilities  to control a workers exposure to a designated substance; methods and procedure should be put in place to monitor airborne concentrations of designated substances and measure workers exposure to the same; training programs should be organized for supervisors and workers on the health effects of the designated substance and the respective controls required. A typical Occupational Hygiene program, therefore, should  include the following:

  • Version history
  • Purpose / objectives
  • Scope and application
  • Distribution
  • Definitions and abbreviations
  • Roles, responsibilities and accountabilities
  • Program management (Resources, commitment and program coordinator)
  • Risk assessments
  • Exposure monitoring plans
  • Occupational hygiene surveys (sampling strategy development, analytical services, documentation and reporting )
  • Occupational hygiene controls
  • Training
  • Related document / appendices
  • Quality assurance
  • Maintenance of standard operating practices (SOPs)
  • Annual summary report.

CONCLUSION

An occupational hygiene program is an important component of workplace management. This ensures the protection of workers’ health, which leads to better and greater productivity at the workplace.  The foundation of occupational hygiene programs is to understand the principles that govern the program and knowing how to apply the principles to various situations at the workplace. Proper application and effective controls will assist in achieving the goal of establishing a safe environment for workers to operate.

REFERENCES

  1. https://www.osha.gov/dte/library/industrial_hygiene/industrial_hygiene.pdf

British Columbia Court Acquits Shipping Company for Marine Pollution Incident

Written by Jacob Jerome Gehlen and Rick Williams, Borden Ladner Gervais LLP

Introduction

On April 8, 2015, the M/V Marathassa (the “Marathassa”) discharged an unknown quantity of intermediate fuel oil into Vancouver’s English Bay. The event triggered a large-scale response, coordinated under the leadership of the Canadian Coast Guard, which removed the vast majority of oil within three days. Shoreline clean-up continued for weeks, and at least 20 migratory birds were affected.

The Crown brought criminal charges against the vessel owner, Greece-based Alassia NewShips Management Inc. (the “Owner”) and the vessel itself. In total, the Marathassa was charged with 10 pollution-related offences. The Owner did not face trial on any of the charges, as the British Columbia Court of Appeal ruled it had not been properly served with a summons. In two decisions in 2018, the British Columbia Provincial Court acquitted the Marathassa of six of these offences.

Clean-up Operations in Vancouver’s English Bay after the MV Marathassa discharged fuel (Source: https://pbs.twimg.com/media/Dy1OP0PW0AEvCb2.jpg)

On February 7, 2019, the Provincial Court gave its final judgment in the case and held that the Marathassa had successfully made out a due diligence defence for the remaining charges (R. v. MV Marathassa, 2019 BCPC 13).

This decision is significant for its discussion of the due diligence defence in the context of marine pollution.

The Decision

The remaining charges were the environmental offences of discharging a pollutant, discharging a substance that is harmful to migratory birds, failing to implement aspects of a shipboard pollution emergency plan, and failing to contain the discharged oil. All of these charges are strict liability offences, and the Crown needed only prove the acts which are the subject of the offences.

The Court found that the discharge was caused by two shipbuilder defects on the vessel. The two defects were not foreseeable to the owner or the crew and were only discovered after the leak was traced back to the area of the defects. The defects were also not foreseeable to the external auditors of the shipbuilding or to Transport Canada Inspectors. A foreign object had somehow entered a valve, preventing proper closure. The leaky valve allowed fuel oil to enter a cargo hold. During the cargo hold washing process, water was used to clean the hold and then pumped out of the hold and into the water. This process created the pollution.

Having established that the events occurred, the Court then examined the Marathassa’s defence of due diligence.

The Court noted that the Marathassa had extensive pollution prevention systems in place and had conducted careful crew selection, comprehensive spill response training, and numerous inspections. The Marathassa had been declared seaworthy by auditors and Transport Canada, and had only been operating for a few weeks at the time of the incident. Marathassa had a mistaken, honest, and reasonable belief that the vessel was seaworthy to the highest international standards.

The Marathassa was found not-guilty of all charges.

Implications

The decision serves as a useful summary of some of the steps necessary to establish a due diligence defence in the maritime pollution context, and the proper elements of “reasonable care” with regards to pollution prevention.

The decision has been criticised as demonstrating that legislative reform is needed to ensure that ship owners and vessels are held directly and criminally accountable for pollution-related offences regardless of the due diligence defence. However, to date, no such legislation has been introduced to take away the due diligence defence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


About the Authors

Jacob Jerome Gehlen is an associate in the Insurance and Tort Liability Group at the Vancouver office of Borden Ladner Gervais LLP. He assists clients with a variety of civil litigation matters, with an emphasis on tort liability, environmental law, insurance defence and maritime law. He has appeared before the Supreme and Provincial Courts of British Columbia.

Rick Williams is a partner in the Vancouver office of Borden Ladner Gervais LLP. He is the National Leader of the Environmental Law group and the Regional Leader of the Regulatory and Oil and Gas groups. Rick regularly represents and advises clients on the commercial, regulatory and litigation aspects of project development, permitting and operations in the energy and natural resource sectors, including land, environmental and Aboriginal issues.  Rick also represents and advises clients on dispute resolution including regulatory proceedings, corporate/commercial litigation and arbitration, with a particular focus on the areas of oil and gas, transportation, forestry and mining.

Managing Environmental Risk through Brownfield Programs When Buying or Leasing Real Property in the United States

Written by Brooke F. Dickerson, Arnall Golden Gregory LLP

American environmental laws can be daunting for a foreign investor. For example, both federal and state laws can impose strict liability, which is liability regardless of fault or intent, on the owner or tenant of a contaminated property, which is sometimes called a “brownfield property.” Such liability could lead to the imposition of penalties, the obligation to perform cleanup work, the duty to reimburse another party for its damages, or the restriction of use of the property itself, even if the contamination occurred prior to the acquisition or lease of the property or if the contamination was not caused by the owner or tenant. However, there are various methods that an entity can use to limit or avoid such liability, as well as unexpected costs, time and expenses. A purchaser or incoming tenant of property that could be contaminated can protect itself by performing due diligence and availing itself of one or more of these methods.

One method frequently used to manage environmental liability is participation in a “Brownfield Program.” Brownfield programs provide liability protection and other benefits to a purchaser or new tenant of real property and have been adopted by several states. Generally, brownfield programs require that a party apply for acceptance either prior to or within a short time after acquiring a property interest. Both the property and the applicant must qualify under the particular criteria for that program. In the state of Georgia, for example: (1) the property must have a preexisting release of a hazardous substance but it cannot already be subject to cleanup requirements under other environmental laws; and (2) the applicant must not be a person who contributed to the contamination or have a close relationship with a person who contributed to the contamination, and the applicant must not be in violation of any environmental order or law. The applicant must agree to adequately assess the environmental conditions of the property, if not already done, and to address any releases that exceed regulatory clean up levels; the proposed assessment and remediation work are submitted in the application as part of a proposed corrective action plan. Finally, the applicant must certify to the agency that it has achieved its corrective action plan tasks after all the work is completed.

In return, an applicant will receive a “Limitation of Liability” under the brownfield law for all of the contaminants that it assessed and/or addressed. The limitation of liability is usually granted as soon as an application is approved, conditioned on the full performance of the corrective action plan. The limitation of liability becomes final upon approval of the applicant’s certification of compliance. The scope of a limitation of liability varies by state, but usually will include protection against any claim by the government for additional cleanup as well as by a third party, such as a neighboring property owner.

Participation in a brownfield program provides several other advantages as well. Remediation requirements can be reduced according to the specific intended use of the property and likely risks of exposure to human health or the environment. A residential use will require a more strict clean up than an industrial use; consequently, the cost to clean up property for an industrial plant will be much less than the costs to clean up property to be a housing development. A prospective purchaser or tenant will have a good estimate of how much it will have to spend and how much time it will take to address environmental problems before it acquires the property, enabling better budgeting and cost evaluation. A very important benefit is that the brownfield limitation of liability runs with the land, which means that the protections pass from the initial applicant to all subsequent owners and tenants of the property. Existing brownfield protection is a significant advantage when marketing the property if and when the owner wants to sell or re-lease it.

As with the extent of liability protection, other brownfield benefits can also vary state by state. Using the Georgia program as an example, a purchaser or new tenant in the brownfield program is excused from having to address any groundwater contamination (which is often the most costly type of remediation work), and the corrective action plan can be performed autonomously, only requiring governmental involvement when the entity submits its final certification of compliance with the corrective action plan. Not being required to obtain governmental approval at various milestones will save the owner or tenant significant time in completing the project.

Many states also offer tax benefits. The Georgia brownfield program incorporates property tax abatements up to the amount of eligible brownfield costs incurred. Eligible brownfield costs include almost all expenses related to assessing the property, working with consultants, cleaning up the property, preparing and submitting all required documentation and finalizing the limitation of liability; legal fees and true construction costs are not eligible. In essence, a new property owner or tenant can get reimbursed for all of its environmental costs through tax savings and still recoup the brownfield liability protection, limitation and certainty of expenses and time, and marketing benefits for resale.

In sum, a potential purchaser or tenant might want to give a contaminated property a second look. Such an investment may yield greater returns than locating on a clean property.

This article has been republished with the permission of the authors. It was first published on the AGG website.


About the Author

Brooke F. Dickerson focuses her practice on transaction, regulatory, compliance and permitting matters. With regards to environmental work, she has significant experience with Superfund (CERCLA), hazardous waste (RCRA and HWMA), the Georgia Hazardous Site Response Act (HSRA), solid waste, Brownfields, wetlands, and site evaluation, assessment and remediation issues. She also advises clients on stormwater compliance, green leasing issues and green/sustainable building practices. With regards to construction work, Ms. Dickerson advises owners and developers on the drafting and negotiation of architect, construction and construction management agreements. She has represented clients in connection with the construction of office, multi-family, mixed use and tenant improvement projects. She also advises clients on OSHA matters and has represented several companies in obtaining reduced or dismissed penalties in settlement negotiations.

Ontario Government Budget & the Environment

Written by John Nicholson, M.Sc., P.Eng., Editor

The Ontario government recently issued its budget for the 2019 fiscal year.  The budget was considered in some circles as not favouring the environment. One environmental activist organization went as far as calling it ““the most anti-environmental budget in Ontario” since Mike Harris was in power in the 1990’s.

For starters, the government cut $300 million from the budget for the Ontario Ministry of Environment, Conservation, and Parks. The cuts
from that Ministry’s budget come from the end of programs funded by the cap-and-trade system, as well as the cancellation of the Drive Clean program for passenger vehicles.

If one looks closely enough at the budget, there was some good news to professionals that work in the environmental sector, including the following:

  • A province-wide climate vulnerability assessment.  The Government will assess the best science and information to better understand where the province is vulnerable and understand which regions and economic sectors are more likely to be impacted.  Such an assessment is typical in the insurance industry and major companies.  The findings from the assessment will feed into the Province’s Climate Plan announced in November 2018.
  • Clean technology incentives.  The Government has taken steps to encourage private investments in clean technologies. Through the Ontario Job Creation Investment Incentive, the Province is paralleling the Federal Government in allowing businesses to immediately write off investments made in specified clean technology capital equipment. This incentive will make investments in clean energy generation and energy conservation equipment more attractive.
  • Industrial emissions performance standards.  The Government is currently developing emissions performance standards for industries to achieve further greenhouse gas reductions.  When the new standards are promulgated in a regulation, each industrial facility will be required to demonstrate compliance annually.

The budget included these and other sections that are encouraging indications the the Ontario government understands that value of the environmental and cleantech industries.

Environmental Liability Risk Faced by Directors of Dissolved Companies – Getting around the Gehring Defence

Written by Una Rodaja, Harper Grey LLP

Once upon a time, you were a director of a company that owned a parcel of land in the Greater Vancouver area.  A dry-cleaner and an auto-repair shop operated on the property, but you were not too concerned about environmental liability.  This was the 80s after all and the rent was good!  Your tenants caused some environmental contamination, which you addressed when your company sold the site in 1990.  You dissolved your company a year later and forgot all about it.

The property is now owned by a developer who is seeking to build a residential tower on the property.  To do so, the developer is required to investigate and remediate contamination that remained on the property after your company sold it.  Standards have changed and the limited remediation your company did years ago no longer meets the applicable standards.  Your old tenants (both sole proprietorships) are long gone and the developer is seeking to hold you personally liable for the costs of remediation.  You did not personally operate on or own the property, so are you really at risk?  A recent BC Supreme Court case says you are.  Here we explain how and why.

Directors of existing corporations are “responsible persons”

Under BC’s Environmental Management Act[1], a director or officer of a company that owns or operates on, or has historically owned or operated on, a contaminated site is a “person responsible for remediation” of that site simply by virtue of their position with the company.[2]  Such directors and officers can be liable to pay reasonable costs of remediation incurred by anyone in respect of the site owned or operated on by their company, if they authorized, permitted or acquiesced to the activity that gave rise to the cost of remediation.[3]

Directors of dissolved corporations are not “responsible persons”

Although the language establishing the categories of “responsible persons” under BC law is very broad, it is not without limit.  For example, it does not include “persons” who have ceased to exist, such as dissolved corporations.  This was made clear by the BC Supreme Court in a seminal decision called Gehring[4].  The case has undoubtedly motivated many corporate dissolutions by directors and officers seeking to shield themselves from personal liability for contaminated sites owned or operated on by the companies they served.

Dissolved companies can be restored – then what?

However, in the recent decision of the BC Supreme Court in Foster v. Tundra Turbos Inc.[5], a director of a long-dissolved corporation that owned and operated on contaminated land faced exposure in an action to recover environmental remediation costs by virtue of an application to restore the company to the corporate registry.  The company in question, Tundra Turbos Inc., was incorporated in 1978, and was dissolved in 2000.  Prior to its dissolution, it had a single director, one Mr. Clarke. The Plaintiff sought to hold Mr. Clarke liable for the costs of remediation incurred in respect of the property, some 17 years after Tundra had dissolved.  The question before the court was whether it was appropriate to restore Tundra and reconstitute Mr. Clarke’s directorship to make it possible for Tundra and Mr. Clarke to be liable for the costs incurred by the Plaintiff in remediating the property owned by Tundra in the late 1980s and early 1990s.  Tundra and Mr. Clarke presented several arguments against the restoration, including that Mr. Clarke would lose the Gehring defence, a substantive right, and that Tundra’s records pertaining to its operations at the property were destroyed, given the length of time involved.  The court rejected these arguments and ordered the restoration.

In the court’s view, there was nothing inherently unfair in the fact that companies and directors may be exposed to liability under BC’s environmental legislation many years after their association with a contaminated property ended.  Further, the right of a company and its directors to avoid liabilities for which they would have been exposed but for the dissolution is not the kind of right protected by legislation.  In fact, a legitimate purpose of restoring a company is to facilitate the imposition of such liabilities.  While destruction of the dissolved company’s records may, in certain circumstances, result in the court rejecting an application to restore, in Tundra’s case there was no prejudice arising from the loss of records because it was clear, on the facts, that had Tundra not been dissolved, it would have been responsible for the costs of remediation.  If anything, the lost records caused more prejudice to the Plaintiff than Tundra’s director, Mr. Clarke, who had personal knowledge of Tundra’s activities on the site.

In addition, the fact that Mr. Clarke could potentially face personal liability even without Tundra being restored (on the basis that he personally had the right to control, was in control of or responsible for any operation on the site in question) did not have a bearing on the restoration application.  The court recognized that it was easier to hold Mr. Clarke liable if he was responsible solely by virtue of his status as director, which could only be done if the company was restored.

Implications of the Tundra Decision

The Tundra case is an important example of creative counsel work to get around the Gehringdefence.  However, notwithstanding the outcome in that case, there are arguments to be made in future cases to avoid the restoration and, ultimately, responsible persons status for the director in question.  Existence of a limitation defence and loss of evidence that would assist in the defence of the director in question, or unreasonable delay of the Plaintiff in bringing the restoration application, may well result in the application being denied.

For lawyers advancing cost recovery claims, the Tundra case is a good reminder of the need to look at dissolved corporations and their directors and officers, and the need to apply for restoration, in a timely fashion.  For those defending these claims, and restoration applications, finding prejudice, beyond the mere loss of the Gehring defence, will be key.

[1] S.B.C. 2003, c. 53 (“EMA”)

[2] EMA, ss. 39(1), 45

[3] EMA, ss. 47(5); Contaminated Sites Regulation, s. 35(4)

[4] Gehring v. Chevron Canada Ltd., 2006 BCSC 1639, para. 55

[5] Foster v. Tundra Turbos Inc., 2018 BCSC 563

About the Author

Una Rodaja is a partner in Harper Grey’s Commercial Litigation and Environmental Regulation & Disputes practice groups. Una frequently lectures on various aspects of contaminated sites law for the Pacific Business and Law Institute, BC Environmental Industry Association, the Environmental Managers Association, and the BC Continuing Legal Education Society.  She is the co-author of BC Environmental Management Legislation and Commentaryand the recipient of the 2017 Lexpert® Leading Lawyers Under 40 award. Una is recognized by the 2018 Canadian Legal Lexpert® Directory as a Leading Lawyer to Watch in the area of corporate commercial litigation and by Benchmark Canada® as a Future Litigation Star. She has also been recognized by Best Lawyers® in Canada 2019 as a “Leading Lawyer in the area of Environmental Law.

Nature based solutions for contaminated land remediation and brownfield redevelopment in cities: A review

A collaboration of researchers from various Universities from around the world recently published a research paper in Science of the Total Environment that reviews nature based solutions for contaminated land remediation. The paper contends that Nature-based solutions (NBS) including phytoremediation and conversion of brownfield sites to public greenspaces, holds much promise in maximizing a sustainable urban renaissance.

The researchers claim that urban industrialization has caused severe land contamination at hundreds of thousands of sites in cities all around the world, posing a serious health risk to millions of people. The also state that many contaminated brownfield sites are being left abandoned due to the high cost of remediation.

Traditional physical and chemical remediation technologies also require high energy and resource input, and can result in loss of land functionality and cause secondary pollution.

NBS is an umbrella concept that can be used to capture nature based, cost effective and eco-friendly treatment technologies, as well as redevelopment strategies that are socially inclusive, economically viable, and with good public acceptance. The NBS concept is novel and in urgent need of new research to better understand the pros and cons, and to enhance its practicality.

The review article summarizes NBS’s main features, key technology choices, case studies, limitations, and future trends for urban contaminated land remediation and brownfield redevelopment.

United States: U.S. EPA Takes Action Under TSCA Identifying Chemicals For Agency Scrutiny

Written by by Lawrence E. Culleen, Arnold & Porter

Prioritization of Chemicals

In its continuing quest to meet regulatory deadlines imposed by the 2016 amendments to the Toxic Substances Control Act (TSCA), the United States Environmental Protection Agency (U.S. EPA) has published a list of 40 chemicals that must be “prioritized” by the end of 2019. The announcement marks the beginning of the Agency’s process for designating the 40 listed chemicals identified as either “high” or “low” priority substances for further the U.S. EPA scrutiny. At the conclusion of the prioritization process, at least 20 of the substances likely will be designated as high priority.

A high priority designation immediately commences the U.S. EPA’s formal “risk evaluation” procedures under the amended statute. The risk evaluation process can lead to “pause preemption” under the terms of the 2016 amendments and new state laws and regulations restricting the manufacture, processing, distribution, and use of a chemical substance undergoing a risk evaluation could not be established until the evaluation process is completed. The U.S. EPA commenced its first 10 risk evaluations as required under the amended law at the close of 2016. The Agency is required to have an additional 20 risk evaluations of high priority substances ongoing by December 22, 2019. If the U.S. EPA’s risk evaluation process concludes that a substance presents an “unreasonable risk” to health or the environment under its “conditions of use,” the Agency must commence a rulemaking to prohibit or limit the use of the substance under Section 6 of TSCA.

The Agency’s announcement of the list of chemicals to undergo prioritization provides the makers and users of the listed substances an important, time limited opportunity to submit relevant information such as the uses, hazards, and exposure for these chemicals. The U.S. EPA has opened a docket for each of the 40 chemicals and the opportunity to submit information for the U.S. EPA’s consideration will close in 90 days (on June 19, 2019). The U.S. EPA will then move to propose the designation of these chemical substances as either high priority or low priority. The statute requires the U.S. EPA to complete the prioritization process, by finalizing its high priority and low priority designations, within the next nine to 12 months.

The list of 20 substances to be reviewed as high priority candidates consists entirely of substances previously identified by U.S. EPA in 2014 as “Work Plan” chemicals. Thus, the list contains few chemicals that should be considered complete “surprises.” However, the inclusion of formaldehyde may raise concerns in certain quarters given the scrutiny that has been given to the U.S. EPA’s previous struggles with assessing the potential effects of formaldehyde. The Agency has attempted to address these concerns by stating “Moving forward evaluating formaldehyde under the TSCA program does not mean that the formaldehyde work done under IRIS will be lost. In fact, the work done for IRIS will inform the TSCA process. By using our TSCA authority EPA will be able to take regulatory steps; IRIS does not have this authority.” Also included in the listing are several chlorinated solvents, phthalates, flame retardants, a fragrance additive, and a polymer pre-curser:

  • p-Dichlorobenzene
  • 1,2-Dichloroethane
  • trans-1,2- Dichloroethylene
  • o-Dichlorobenzene
  • 1,1,2-Trichloroethane
  • 1,2-Dichloropropane
  • 1,1-Dichloroethane
  • Dibutyl phthalate (DBP) (1,2-Benzene- dicarboxylic acid, 1,2- dibutyl ester)
  • Butyl benzyl phthalate (BBP) – 1,2-Benzene- dicarboxylic acid, 1- butyl 2(phenylmethyl) ester
  • Di-ethylhexyl phthalate (DEHP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis(2-ethylhexyl) ester)
  • Di-isobutyl phthalate (DIBP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis-(2methylpropyl) ester)
  • Dicyclohexyl phthalate
  • 4,4′-(1-Methylethylidene)bis[2, 6-dibromophenol] (TBBPA)
  • Tris(2-chloroethyl) phosphate (TCEP)
  • Phosphoric acid, triphenyl ester (TPP)
  • Ethylene dibromide
  • 1,3-Butadiene
  • 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta [g]-2-benzopyran (HHCB)
  • Formaldehyde
  • Phthalic anhydride

The U.S. EPA has signaled that it has received a manufacturer request for a EPA to undertake a risk evaluation of two additional phthalates which, if administrative requirements for such request have been met, the Agency would announce publicly in the very near term.

The 20 low priority candidate chemicals were selected from the U.S. EPA’s “Safer Chemicals Ingredients List”—a list of substances previously evaluated and considered to meet the U.S. EPA’s “Safer Choice” criteria for use in certain common product categories, such as cleaning products.

Other Recent and Impending U.S. EPA Actions Under TSCA

Given the numerous deadlines that are looming under the amendments to TSCA, it is critical that chemical manufacturers and processors of chemicals and formulations remain aware of the recent and upcoming actions under TSCA that can significantly impact their businesses. The following provides a short list of important actions of which to be aware.

Active/Inactive TSCA Inventory Designations. EPA released an updated version of the TSCA Inventory in February 2019. The Inventory is available for download here. This version of the Inventory includes chemical substances reported by manufacturers and processors by their respective reporting deadlines in 2018. The updated TSCA Inventory (confidential and non-confidential versions) includes 40,655 “active” chemical substances and 45,573 “inactive” chemical substances. Once the current 90-day “transition period” has concluded, it will be unlawful to manufacture, import or process in the US any substance that is listed as “inactive” without first providing notice to the U.S. EPA. Thus, prior to the expiration of the “transition period” on May 20, 2019, manufacturers and processors of chemical substances that are not listed as active on the February 2019 TSCA Inventory must take steps to activate the substance by filing a Notice of Activity (NOA Form B) for any chemical substance that they currently are manufacturing or processing, or anticipate manufacturing or processing within 90 days of submission.

Final TSCA Section 6(a) for Methylene Chloride in Paint and Coating Removers. EPA has released its long-awaited TSCA Section 6(a) rule restricting the use of methylene chloride in paint and coating removers. The final rule prohibits the manufacture, processing, and distribution of methylene chloride in paint removers for consumer use. The rule prohibits the sale of methylene chloride-containing paint and coating removers at retail establishments with any consumer sales (including e-commerce sales). The U.S. EPA declined to finalize its determination that the commercial use of methylene chloride-containing paint and coating removers presents an unreasonable risk. Therefore, distributors to commercial users, industrial users, and other businesses will continue to be permitted to distribute methylene chloride-containing paint and coating removers. However, given recent efforts by store-front retailers to “deselect” such products for consumer sales, it remains unclear how distributions to commercial users can or will occur.

The U.S. EPA simultaneously released an advanced notice of proposed rulemaking related to a potential certification program for commercial uses of methylene chloride-containing paint and coating removers. The U.S. EPA has similar programs in place for certain pesticides and refrigerants, and the United Kingdom currently has in place a program to certify commercial users of methylene chloride-containing paint and coating removers. The U.S. EPA is seeking comment on whether a certification program is the appropriate tool to address any potential risks that could be posed by the commercial use of methylene chloride-containing paint and coating removers.

Upcoming Draft Risk Evaluations. The U.S. EPA is expected to publish within days or weeks the highly anticipated draft Risk Evaluations for the remaining 9 of the 10 initial substances to undergo TSCA Risk Evaluations under the amended law and which have been under review since December 2016. The Agency will accept comments on the drafts for a limited period.

Proposed Rules for 5 PBT substances. The U.S. EPA is required to issue no later than June 2019 proposed TSCA Section 6 regulations for 5 persistent, bioaccumulative and toxic (PBT) substances that were identified during 2016 as priorities for regulatory action. The Agency must propose expedited rules intended to reduce exposures to the extent practicable.


*Camille Heyboer also contributed to this Advisory.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

About the Author

Lawrence Culleen represents clients on administrative, regulatory, and enforcement matters involving federal agencies such as the U.S. Environmental Protection Agency (EPA), the US Department of Agriculture, the US Food and Drug Administration, and the Consumer Product Safety Commission. Mr. Culleen has broad experience advising clients on US and international regulatory programs that govern commercial and consumer use chemicals, pesticides and antimicrobials, as well as the products of biotechnology and nanoscale materials. Prior to joining the firm, Mr. Culleen held significant positions at EPA serving as a manager in various risk-management programs which oversee pesticides, chemical substances, and biotechnology products.

United States: When Is Property Damage From A Release “Expected Or Intended”? Only After The Owner Learns Of The Spill And Ignores It

Written by Seth JaffeFoley Hoag LLP

Any good trial lawyer will tell you that the law is about telling stories.

Once upon a time, Timothy and Stacy Creamer bought a house.  Only after they closed did they realize that some strategically placed rugs were hiding the evidence that, “up from the ground come a bubblin’ crude.”

Unlike Jed Clampett, rather than finding themselves millionaires, the Creamers found themselves with a million dollar liability – literally.

This being a law story, of course the sellers were bankrupt.  The Creamers thus pursued the sellers’ insurer.  The case ended up in the Appeals Court, which held that the Creamers could pursue their claims under the policy.

The insurer, Arbella, made three arguments in support of its summary judgment motion.  The Court rejected them all.  In order, the Court held that:

  1. The property damage was caused by an occurrence.  Arbella argued that the damage was caused by the sellers’ fraud, not by the original release of oil.  However, as the Court pointed out, the Creamers’ had claims based on Chapter 21E, the Commonwealth’s superfund law.  Since Chapter 21E is a strict liability statute, the Creamers’ damages were caused by the release, not by the sellers’ fraud.  (But see number 3, below!)
  2. The loss occurred during the policy period.  Following precedent, the Court concluded that, so long as the property damage occurred during the policy period, it did not matter that the harm to the claimant did not occur until later.
  3. At least some of the damage was not “expected or intended.”  This is the most significant part of the case.  While preserving Creamers’ claims, the Court split the baby on this one.  It held that the original release was not expected or intended, but that, once the sellers discovered the spill without doing anything about it, any further damage was “expected” by the seller.  The Court thus remanded for a determination by the Superior Court how much of the total property damage was “expected.”

The Creamers will thus get their day in court, but, depending on when the sellers learned of the contamination, their recovery could be significantly limited.  They certainly will not get enough to move to Beverly Hills.  No swimming pools or movie stars for the Creamers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

About the Author

Seth Jaffe is recognized by Chambers USA, The Best Lawyers in America and Massachusetts Super Lawyers as a leading practitioner in environmental compliance and related litigation. He is one of the authors of the Law and the Environment Blog, www.lawandenvironment.com, which provides real-world perspectives on current developments in environmental law and regulation. Seth is a past President of the American College of Environmental Lawyers.

Seth works on a wide range of environmental law issues, representing clients in the permitting/licensing of new facilities and offering ongoing guidance on permitting and enforcement related matters under federal and state Clean Air Acts, Clean Water Acts, RCRA, and TSCA. He also advises on wetlands and waterways regulation. Seth’s clients include electric generating facilities, companies in the printing and chemical industries, and education and health care institutions.